BILL NUMBER: AB 3037 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 29, 2004
AMENDED IN ASSEMBLY APRIL 12, 2004
INTRODUCED BY Assembly Member Yee
FEBRUARY 26, 2004
An act to amend Sections 6302 and 6401.7 of, and to add Sections
6401.8 and 6401.9 to, the Labor Code, and to amend Section 1103 of,
and to add Chapter 1.5 (commencing with Section 1200) to Part 1 of
Division 2 of, the Public Contract Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 3037, as amended, Yee. Employment: occupational safety and
health.
Existing law requires every employer to establish an effective
injury prevention program, and specifically permits employer and
employee occupational safety and health committees to be included in
the employer's injury prevention program.
This bill would require the injury and illness prevention program
(IIPP) of an employer to include either a joint employer-employee
occupational safety and health committee or an employer-employee
safety liaison team, except as specified. The bill would require the
Division of Occupational Safety and Health to adopt regulations to
implement this new requirement on or before January 1, 2006, and to
establish minimum criteria regarding committee duties and selection
of employee representatives.
Existing law creates a presumption that an employer is in
substantial compliance with the communication requirement of the
employer's injury prevention program if the employer's occupational
safety and health committee conforms with specified criteria.
This bill would require the Department of Industrial Relations or
one of its divisions to establish criteria for a certificate of merit
for employers with an effective IIPP with an effective joint
employer-employee occupational safety and health committee. The
certificate would entitle the employer to additional incentives,
including a 5% discount on the employer's workers'
compensation premium and a presumption that an employer meets
responsible bidding requirements for safety and health.
The bill would require employers to submit certificate
applications under penalty of perjury. By creating a new crime, the
bill would impose a state-mandated local program.
The bill would impose related responsible bidder requirements for
public contracts, that would require demonstration of the
effectiveness of the bidder's IIPP. The bill would require the
Department of Industrial Relations to develop model guidelines for
contractual language for public entities to assure that the
successful bidder provides a safe and healthful work place.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares that workplace
deaths, injuries, and illnesses take a tremendous, tragic, costly,
and unnecessary toll in California. A significant means of reducing
the costs of workplace deaths, injuries, and illnesses--personal and
economic costs borne by the injured worker and workers' compensation
costs borne by the employer--is to reduce the incidence of these
events. This requires a multi-faceted approach involving education
of both workers and employers as to their respective rights and
duties, encouragement to work cooperatively, and ultimately strong
government as well as private enforcement efforts. To strengthen
this multi-faceted approach, it is the intent of the Legislature to
focus on effective means to assure that workers and employers can, at
the workplace, solve problems quickly and cooperatively. The
Legislature believes labor-management health and safety cooperation,
so long as it includes knowledgeable, independent worker
participation, will reduce workplace deaths, injuries, and illnesses.
The Legislature believes that employers who have effective
cooperative occupational safety and health programs should be
rewarded when, for example, they bid on government contracts, and
they should also receive discounts on their workers' compensation
insurance premiums. It is also the intent of the Legislature to
assure that workers have effective and enforceable rights to secure
safe and healthful working conditions through meaningful
participation in the employer's injury and illness prevention program
and further that workers be protected against reprisals for
participation in occupational safety and health matters. The
following rights and remedies shall be available and rigorously
enforced.
SEC. 2. Section 6302 of the Labor Code is amended to read:
6302. As used in this division:
(a) "Director" means the Director of Industrial Relations.
(b) "Department" means the Department of Industrial Relations.
(c) "Insurer" includes the State Compensation Insurance Fund and
any private company, corporation, mutual association, and reciprocal
or interinsurance exchange, authorized under the laws of this state
to insure employers against liability for compensation under this
part and under Division 4 (commencing with Section 3201), and any
employer to whom a certificate of consent to self-insure has been
issued.
(d) "Division" means the Division of Occupational Safety and
Health.
(e) "Standards board" means the Occupational Safety and Health
Standards Board, within the department.
(f) "Appeals board" means the Occupational Safety and Health
Appeals Board, within the department.
(g) "Aquaculture" means a form of agriculture as defined in
Section 17 of the Fish and Game Code.
(h) "Serious injury or illness" means any injury or illness
occurring in a place of employment or in connection with any
employment which requires inpatient hospitalization for a period in
excess of 24 hours for other than medical observation or in which an
employee suffers a loss of any member of the body or suffers any
serious degree of permanent disfigurement, but does not include any
injury or illness or death caused by the commission of a Penal Code
violation, except the violation of Section 385 of the Penal Code, or
an accident on a public street or highway.
(i) "Serious exposure" means any exposure of an employee to a
hazardous substance when the exposure occurs as a result of an
incident, accident, emergency, or exposure over time and is in a
degree or amount sufficient to create a substantial probability that
death or serious physical harm in the future could result from the
exposure.
(j) "Serious physical harm" means any injury or illness occurring
in a place of employment or in connection with any employment that
meets the following criteria:
(1) An injury is a temporary, prolonged, or permanent impairment
of the body in which part of the body is made functionally useless or
substantially reduced in function on or off the job or which results
in permanent disfigurement. Injuries involving impairment or
disfigurement would usually require treatment by a physician and may
include, but are not limited to, the following:
(A) Amputation (loss of all or part of a body appendage that
includes the loss of bone).
(B) Concussion or other head injury resulting in an altered level
of consciousness.
(C) Crushing (internal, even though the skin surface may be
intact).
(D) Simple or compound fracture.
(E) Thermal, electric, or chemical burn or scald.
(F) Cut, laceration, or puncture involving significant bleeding or
requiring suturing.
(2) An illness is an acute or chronic condition that could shorten
life or result in significant impairment of physical or mental
function or impairment of a part of the body. These conditions
include, but are not limited to, the following:
(A) Cancer.
(B) Respiratory diseases, such as silicosis, byssinosis,
asbestosis, or work-related asthma.
(C) Infectious diseases, such as human immunodeficiency virus
(HIV), hepatitis, and tuberculosis (TB).
(D) Poisoning from the inhalation, ingestion, or skin absorption
of a toxic substance that adversely affects a bodily system.
(E) Noise-induced hearing loss.
SEC. 3. Section 6401.7 of the Labor Code is amended to read:
6401.7. (a) Every employer shall establish, implement, and
maintain an effective injury and illness prevention program. The
program shall be written, except as provided in subdivision (e), and
shall include, but not be limited to, all of the following elements:
(1) Identification of the person or persons responsible for
implementing the program.
(2) The employer's system for identifying and evaluating workplace
hazards, including scheduled periodic inspections to identify unsafe
conditions and work practices.
(3) The employer's methods and procedures for correcting unsafe or
unhealthy conditions and work practices in a timely manner.
(4) An occupational health and safety training program designed to
instruct employees in general safe and healthy work practices and to
provide specific instruction with respect to hazards specific to
each employee's job assignment.
(5) The employer's system for communicating with employees on
occupational health and safety matters, including provisions designed
to encourage employees to inform the employer of hazards at the
worksite without fear of reprisal.
(6) The employer's system for ensuring that employees comply with
safe and healthy work practices, which may include disciplinary
action.
(b) The employer shall correct unsafe and unhealthy conditions and
work practices in a timely manner based on the severity of the
hazard.
(c) The employer shall train all employees when the training
program is first established, all new employees, and all employees
given a new job assignment, and shall train employees whenever new
substances, processes, procedures, or equipment are introduced to the
workplace and represent a new hazard, and whenever the employer
receives notification of a new or previously unrecognized hazard.
Beginning January 1, 1994, an employer in the construction industry
who is required to be licensed under Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code may
use employee training provided to the employer's employees under a
construction industry occupational safety and health training program
approved by the division to comply with the requirements of
subdivision (a) relating to employee training, and shall only be
required to provide training on hazards specific to an employee's job
duties.
(d) The employer shall keep appropriate records of steps taken to
implement and maintain the program. Beginning January 1, 1994, an
employer in the construction industry who is required to be licensed
under Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code may use records relating to employee
training provided to the employer in connection with an occupational
safety and health training program approved by the division to comply
with the requirements of this subdivision, and shall only be
required to keep records of those steps taken to implement and
maintain the program with respect to hazards specific to an employee'
s job duties.
(e) (1) The standards board shall adopt a standard setting forth
the employer's duties under this section, on or before January 1,
1991, consistent with the requirements specified in subdivisions (a),
(b), (c), and (d). The standards board, in adopting the standard,
shall include substantial compliance criteria for use in evaluating
an employer's injury and illness prevention program. The board may
adopt less stringent criteria for employers with few employees and
for employers in industries with insignificant occupational safety or
health hazards.
(2) Notwithstanding subdivision (a), for employers with fewer than
20 employees who are in industries that are not on a designated list
of high hazard industries and who have a workers' compensation
experience modification rate of 1.1 or less, and for any employers
with fewer than 20 employees who are in industries that are on a
designated list of low hazard industries, the board shall adopt a
standard setting forth the employer's duties under this section
consistent with the requirements specified in subdivisions (a), (b),
and (c), except that the standard shall only require written
documentation to the extent of documenting the person or persons
responsible for implementing the program pursuant to paragraph (1) of
subdivision (a), keeping a record of periodic inspections pursuant
to paragraph (2) of subdivision (a), and keeping a record of employee
training pursuant to paragraph (4) of subdivision (a). To any extent
beyond the specifications of this subdivision, the standard shall
not require the employer to keep the records specified in subdivision
(d).
(3) The division shall establish a list of high hazard industries
using the methods prescribed in Section 6314.1 for identifying and
targeting employers in high hazard industries. For purposes of this
subdivision, the "designated list of high hazard industries" shall be
the list established pursuant to this paragraph.
For the purpose of implementing this subdivision, the Department
of Industrial Relations shall periodically review, and as necessary
revise, the list.
(4) For the purpose of implementing this subdivision, the
Department of Industrial Relations shall also establish a list of low
hazard industries, and shall periodically review, and as necessary
revise, that list.
(f) The employer's injury and illness prevention program, as
required by this section, shall cover all of the employer's employees
and all other workers who the employer controls or directs, in
conformity with subdivision (b) of Section 6400. Nothing in this
subdivision shall diminish the obligations of a contractor or other
employer that controls or directs its own employees on the job.
(g) Where a contractor supplies its employee to a state agency
employer on a temporary basis, the state agency employer may assess a
fee upon the contractor to reimburse the state agency for the
additional costs, if any, of including the contract employee within
the state agency's injury and illness prevention program.
(h) (1) The division shall prepare a Model Injury and Illness
Prevention Program for Non-High-Hazard Employment, and shall make
copies of the model program prepared pursuant to this subdivision
available to employers, upon request, for posting in the workplace.
An employer who adopts and implements the model program prepared by
the division pursuant to this paragraph in good faith shall not be
assessed a civil penalty for the first citation for a violation of
this section issued after the employer's adoption and implementation
of the model program.
(2) For purposes of this subdivision, the division shall establish
a list of non-high-hazard industries in California, that may include
the industries that, pursuant to Section 14316 of Title 8 of the
California Code of Regulations, are not currently required to keep
records of occupational injuries and illnesses under Article 2
(commencing with Section 14301) of Subchapter 1 of Chapter 7 of
Division 1 of Title 8 of the California Code of Regulations. These
industries, identified by their Standard Industrial Classification
Codes, as published by the United States Office of Management and
Budget in the Manual of Standard Industrial Classification Codes,
1987 Edition, are apparel and accessory stores (Code 56), eating and
drinking places (Code 58), miscellaneous retail (Code 59), finance,
insurance, and real estate (Codes 60-67), personal services (Code
72), business services (Code 73), motion pictures (Code 78) except
motion picture production and allied services (Code 781), legal
services (Code 81), educational services (Code 82), social services
(Code 83), museums, art galleries, and botanical and zoological
gardens (Code 84), membership organizations (Code 86), engineering,
accounting, research, management, and related services (Code 87),
private households (Code 88), and miscellaneous services (Code 89).
To further identify industries that may be included on the list, the
division shall also consider data from a rating organization, as
defined in Section 11750.1 of the Insurance Code, the Division of
Labor Statistics and Research, including the logs of occupational
injuries and illnesses maintained by employers on Form CAL/OSHA No.
200, or its equivalent, as required by Section 14301 of Title 8 of
the California Code of Regulations, and all other appropriate
information. The list shall be established by June 30, 1994, and
shall be reviewed, and as necessary revised, biennially.
(3) The division shall prepare a Model Injury and Illness
Prevention Program for Employers in Industries with Intermittent
Employment, and shall determine which industries have historically
utilized seasonal or intermittent employees. An employer in an
industry determined by the division to have historically utilized
seasonal or intermittent employees shall be deemed to have complied
with the requirements of subdivision (a) with respect to a written
injury and illness prevention program if the employer adopts the
model program prepared by the division pursuant to this paragraph and
complies with any instructions relating thereto.
(i) With respect to any county, city, city and county, or
district, or any public or quasi-public corporation or public agency
therein, including any public entity, other than a state agency, that
is a member of, or created by, a joint powers agreement, subdivision
(d) shall not apply.
(j) Every workers' compensation insurer shall conduct a review,
including a written report as specified below, of the injury and
illness prevention program (IIPP) of each of its insureds within four
months of the commencement of the initial insurance policy term.
The review shall determine whether the insured has implemented all of
the required components of the IIPP, and evaluate their
effectiveness. The training component of the IIPP shall be evaluated
to determine whether training is provided to line employees,
supervisors, and upper level management, and effectively imparts the
information and skills each of these groups needs to ensure that all
of the insured's specific health and safety issues are fully
addressed by the insured. The reviewer shall prepare a detailed
written report specifying the findings of the review and all
recommended changes deemed necessary to make the IIPP effective. The
reviewer shall be an independent licensed California professional
engineer, certified safety professional, or a certified industrial
hygienist.
SEC. 3. Section 6401.7 of the Labor Code is amended to read:
6401.7. (a) Every employer shall establish, implement, and
maintain an effective injury and illness prevention
program. The program shall be written, except as provided in
subdivision (e), and shall include, but not be limited to, all
of the following elements:
(1) Identification of the person or persons responsible for
implementing the program.
(2) The employer's system for identifying and evaluating workplace
hazards, including scheduled periodic inspections to identify unsafe
conditions and work practices.
(3) The employer's methods and procedures for correcting unsafe or
unhealthy conditions and work practices in a timely manner.
(4) An occupational health and safety training program designed to
instruct employees in general safe and healthy work practices and to
provide specific instruction with respect to hazards specific to
each employee's job assignment.
(5) The employer's system for communicating with employees on
occupational health and safety matters, including provisions designed
to encourage employees to inform the employer of hazards at the
worksite without fear of reprisal.
(6) The employer's system for ensuring that employees comply with
safe and healthy work practices, which may include disciplinary
action.
(b) The employer shall correct unsafe and unhealthy conditions and
work practices in a timely manner based on the severity of the
hazard.
(c) The employer shall train all employees when the training
program is first established, all new employees, and all employees
given a new job assignment, and shall train employees whenever new
substances, processes, procedures, or equipment are introduced to the
workplace and represent a new hazard, and whenever the employer
receives notification of a new or previously unrecognized hazard.
Beginning January 1, 1994, an employer in the construction industry
who is required to be licensed under Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code may
use employee training provided to the employer's employees under a
construction industry occupational safety and health training program
approved by the division to comply with the requirements of
subdivision (a) relating to employee training, and shall only be
required to provide training on hazards specific to an employee's job
duties.
(d) The employer shall keep appropriate records of steps taken to
implement and maintain the program. Beginning January 1, 1994, an
employer in the construction industry who is required to be licensed
under Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code may use records relating to employee
training provided to the employer in connection with an occupational
safety and health training program approved by the division to comply
with the requirements of this subdivision, and shall only be
required to keep records of those steps taken to implement and
maintain the program with respect to hazards specific to an employee'
s job duties.
(e) (1) The standards board shall adopt a standard setting forth
the employer's duties under this section, on or before January 1,
1991, consistent with the requirements specified in subdivisions (a),
(b), (c), and (d). The standards board, in adopting the standard,
shall include substantial compliance criteria for use in evaluating
an employer's injury and illness prevention program. The
board may adopt less stringent criteria for employers with few
employees and for employers in industries with insignificant
occupational safety or health hazards.
(2) Notwithstanding subdivision (a), for employers with fewer than
20 employees who are in industries that are not on a designated list
of high hazard industries and who have a workers' compensation
experience modification rate of 1.1 or less, and for any employers
with fewer than 20 employees who are in industries that are on a
designated list of low hazard industries, the board shall adopt a
standard setting forth the employer's duties under this section
consistent with the requirements specified in subdivisions (a), (b),
and (c), except that the standard shall only require written
documentation to the extent of documenting the person or persons
responsible for implementing the program pursuant to paragraph (1) of
subdivision (a), keeping a record of periodic inspections pursuant
to paragraph (2) of subdivision (a), and keeping a record of employee
training pursuant to paragraph (4) of subdivision (a). To any
extent beyond the specifications of this subdivision, the standard
shall not require the employer to keep the records specified in
subdivision (d).
(3) The division shall establish a list of high hazard industries
using the methods prescribed in Section 6314.1 for identifying and
targeting employers in high hazard industries. For purposes of this
subdivision, the "designated list of high hazard industries" shall be
the list established pursuant to this paragraph.
For the purpose of implementing this subdivision, the Department
of Industrial Relations shall periodically review, and as necessary
revise, the list.
(4) For the purpose of implementing this subdivision, the
Department of Industrial Relations shall also establish a list of low
hazard industries, and shall periodically review, and as necessary
revise, that list.
(f) The standard adopted pursuant to subdivision (e)
shall specifically permit employer and employee occupational safety
and health committees to be included in the employer's injury
prevention program. The board shall establish criteria for use in
evaluating employer and employee occupational safety and health
committees. The criteria shall include minimum duties, including the
following:
(1) Review of the employer's (A) periodic, scheduled worksite
inspections, (B) investigation of causes of incidents resulting in
injury, illness, or exposure to hazardous substances, and (C)
investigation of any alleged hazardous condition brought to the
attention of any committee member. When determined necessary by the
committee, the committee may conduct its own inspections and
investigations.
(2) Upon request from the division, verification of abatement
action taken by the employer as specified in division citations.
If an employer's occupational safety and health committee meets
the criteria established by the board, it shall be presumed to be in
substantial compliance with paragraph (5) of subdivision (a).
(g) The division shall adopt regulations specifying the procedures
for selecting employee representatives for employer-employee
occupational health and safety committees when these procedures are
not specified in an applicable collective bargaining agreement. No
employee or employee organization shall be held liable for any act or
omission in connection with a health and safety committee.
(h) The employer's injury and illness
prevention program, as required by this section, shall cover all of
the employer's employees and all other workers who the employer
controls or directs and directly supervises on the job to
the extent these workers are exposed to worksite and job assignment
specific hazards , in conformity with subdivision (b)
of Section 6400 . Nothing in this subdivision shall
affect diminish the obligations of a contractor
or other employer that controls or directs and directly
supervises its own employees on the job.
(i)
(g) When a contractor supplies its employee to a state
agency employer on a temporary basis, the state agency employer may
assess a fee upon the contractor to reimburse the state agency for
the additional costs, if any, of including the contract employee
within the state agency's injury and illness prevention
program.
(j)
(h) (1) The division shall prepare a Model Injury and
Illness Prevention Program for Non-High-Hazard Employment, and shall
make copies of the model program prepared pursuant to this
subdivision available to employers, upon request, for posting in the
workplace. An employer who adopts and implements the model program
prepared by the division pursuant to this paragraph in good faith
shall not be assessed a civil penalty for the first citation for a
violation of this section issued after the employer's adoption and
implementation of the model program.
(2) For purposes of this subdivision, the division shall establish
a list of non-high-hazard industries in California. These
industries, identified by their Standard Industrial Classification
Codes, as published by the United States Office of Management and
Budget in the Manual of Standard Industrial Classification Codes,
1987 Edition, are apparel and accessory stores (Code 56), eating and
drinking places (Code 58), miscellaneous retail (Code 59), finance,
insurance, and real estate (Codes 60-67), personal services (Code
72), business services (Code 73), motion pictures (Code 78) except
motion picture
production and allied services (Code 781), legal services (Code 81),
educational services (Code 82), social services (Code 83), museums,
art galleries, and botanical and zoological gardens (Code 84),
membership organizations (Code 86), engineering, accounting,
research, management, and related services (Code 87), private
households (Code 88), and miscellaneous services (Code 89). To
further identify industries that may be included on the list, the
division shall also consider data from a rating organization, as
defined in Section 11750.1 of the Insurance Code, the Division of
Labor Statistics and Research, and all other appropriate information.
The list shall be established by June 30, 1994, and shall be
reviewed, and as necessary revised, biennially.
(3) The division shall prepare a Model Injury and Illness
Prevention Program for Employers in Industries with Intermittent
Employment, and shall determine which industries have historically
utilized seasonal or intermittent employees. An employer in an
industry determined by the division to have historically utilized
seasonal or intermittent employees shall be deemed to have complied
with the requirements of subdivision (a) with respect to a written
injury and illness prevention program if the employer
adopts the model program prepared by the division pursuant to this
paragraph and complies with any instructions relating thereto.
(k)
(i) With respect to any county, city, city and county, or
district, or any public or quasi-public corporation or public agency
therein, including any public entity, other than a state agency, that
is a member of, or created by, a joint powers agreement, subdivision
(d) shall not apply.
(l)
(j) Every workers' compensation insurer shall conduct a
review, including a written report as specified below, of the injury
and illness prevention program (IIPP) of each of its insureds with an
experience modification of 2.0 or greater within six months of the
commencement of the initial insurance policy term. The review shall
determine whether the insured has implemented all of the required
components of the IIPP, and evaluate their effectiveness. The
training component of the IIPP shall be evaluated to determine
whether training is provided to line employees, supervisors, and
upper level management, and effectively imparts the information and
skills each of these groups needs to ensure that all of the insured's
specific health and safety issues are fully addressed by the
insured. The reviewer shall prepare a detailed written report
specifying the findings of the review and all recommended changes
deemed necessary to make the IIPP effective. The reviewer shall be
or work under the direction of a licensed California professional
engineer, certified safety professional, or a certified industrial
hygienist.
SEC. 4. Section 6401.8 is added to the Labor Code, to read:
6401.8. (a) On or before January 1, 2006, the division shall
adopt regulations to require joint employer and employee occupational
safety and health committees or safety liaisons to be included in
the employer's injury and illness prevention program, except as
provided in subdivision (b). The division shall establish minimum
criteria for employer and employee occupational safety and health
committees or safety liaisons, including both of the following:
(1) Employers with 50 or more employees shall have a joint
employer-employee occupational safety and health committee.
(2) Employers with fewer than 50 employees shall have at least one
employee and one employer representative as a safety liaison team.
(b) (1) Notwithstanding paragraphs (2) and (3), an employer who,
in the last four years from the date of the most recent incident, has
had an occupational safety and health citation for any work-related
fatality, shall not be exempt from subdivision (a).
(2) An employer who has sufficient workers' compensation premiums
to generate an experience modification rate shall be exempt from
subdivision (a) unless any of the following apply:
(A) The employer has an experience modification rate of 1.25 or
more.
(B) The employer is in a high hazard industry as determined
pursuant to the following:
(i) The industry is not on the list of non-high hazard industries
in California, as established pursuant to paragraph (2) of
subdivision (h) of Section 6401.7.
(ii) The industry is not on the low hazard industry list, as
established pursuant to paragraph (4) of subdivision (e) of Section
6401.7.
(3) An employer who does not have sufficient workers' compensation
premiums to generate an experience modification rate shall be exempt
from subdivision (a) unless either of the following apply:
(A) An employee of the employer has, within the last two years,
had a work-related serious injury or illness, as defined in
subdivision (h) of Section 6302, or an injury or illness that
resulted in serious physical harm, as defined in subdivision (j) of
Section 6302.
(B) The employer is in an industry on the designated list of high
hazard industries established pursuant to paragraph (3) of
subdivision (e) of Section 6401.7.
(c) Employers exempted pursuant to subdivision (b) may institute a
joint employer-employee occupational safety and health committee or
safety liaison in order to apply for a certificate of merit pursuant
to Section 6401.9.
(d) (1) In determining employment levels under subdivisions (a)
and (b), the employer shall count all permanent, contract, temporary,
and seasonal workers under the employer's direction and control, and
shall base the number on peak employment.
(2) Temporary services employers and labor contractors shall
determine employment levels based upon the total number of workers
over which the employer or contractor exercises direction and
control.
(e) (1) For agricultural workplaces, the agricultural employer
shall establish the committee and include representatives of labor
contractors when those subcontractors are active at the premises.
(2) For multiemployer nonpermanent workplaces, the general or
prime or principal contractor shall establish the committee and
include representatives of each subcontractor when those
subcontractors are active at the premises.
(3) For multiemployer permanent workplaces, the facility shall
establish the committee and include representatives of each
subcontractor when those subcontractors are active at the premises.
(f) The duties of the joint employer-employee occupational safety
and health committee or safety liaison shall be addressed by the
minimum criteria established pursuant to subdivision (a), and shall
include, among other things, all of the following:
(1) Review of the employer's injury and illness prevention
program.
(2) Participation in and review of any periodic, scheduled
worksite inspections, including evaluating the effectiveness of new
safety equipment and health and safety procedures. For multiemployer
nonpermanent workplaces, the committee or liaison shall review the
work to be done in the next period for all trades and crafts, the
associated safety and health hazards that cross craft lines, and may
make recommendations to all employers involved.
(3) Participation in and review of any investigation of causes of
incidents involving near-misses or death, injury, illness, or
exposure to hazardous substances.
(4) Participation in and review of any investigation of any
alleged hazardous condition or complaints.
(5) Participation in follow-up, abatement, and reporting back to
complainants regarding the complaints and, upon the request of the
division, regarding citations issued by the division.
(6) Development of a system for encouraging employees to bring
complaints or problems to the attention of the committee or team,
including anonymous complaints.
(7) Additional inspections and investigations by the committee or
liaison, when determined necessary by the committee or liaison.
(8) Recommendations to the employer regarding corrective actions
to be implemented within a specified time period. If a
recommendation is not implemented, the employer shall provide a
written explanation to the committee or liaison.
(9) Quarterly meetings if the employer is on the low hazard list,
twice monthly meetings if the employer is on the high hazard list or
has an experience modification rate of greater than 1.25, or weekly
meetings for multiemployer nonpermanent workplaces.
(10) A written agenda for each meeting, accurate and thorough
committee meeting minutes, and documentation of all other activities.
(11) Complete documentation of the activities of the committee or
liaison team included with the employer's injury and illness
prevention program and made available for inspection and copying by
the division or any other government agency, upon request, and by
employees or their representatives at reasonable times and in a
reasonable manner. Medical or other personal information regarding a
worker shall be available only to government agencies authorized by
law to obtain that information and other authorized requesters with
the permission of the affected employee.
(12) Prominent posting of the committee's agenda, outstanding
action items, and proposed and actual resolutions of health and
safety concerns within 30 days after the item has been resolved.
(13) Prominent posting of the names of all committee members or
liaison team members.
(14) The committee or liaison team may also recommend to the
employer that work stop if the committee or liaison team believes the
situation constitutes an imminent hazard or serious menace to the
lives or safety of employees. If a recommendation is not followed,
the employer shall provide a written explanation to the committee or
liaison team, and shall post the recommendation until 30 days after
the matter is resolved.
(g) The structure of the joint employer-employee occupational
safety and health committee or safety liaison shall be addressed by
the minimum criteria established pursuant to subdivision (a), and
shall include, among other things, all of the following:
(1) An equal number of employer and employee representatives. The
employer and employees may agree to a greater number of employee
representatives.
(2) At least two employee and two management members for the first
50 employees, and at least one additional employee and one
additional management member for each subsequent 50 employees. The
employer and employees may agree to a maximum of 20 members or more
in workplaces where over 20 members would be required pursuant to
this paragraph. The employer and employees may agree to one or more
subcommittees in large workplaces to accommodate shifts and other
needs of large workplaces.
(3) Reasonable efforts to ensure representation of various shifts,
trades and crafts, unions, and work activities.
(4) Majority vote on all recommendations to the employer.
(5) Annual rotation of the chair between labor and management.
(h) The selection of the committee or liaison member shall be
addressed by the minimum criteria established pursuant to subdivision
(a), and shall include, among other things, all of the following:
(1) The employer shall designate management representatives and
direct their activities. The responsible person identified pursuant
to paragraph (1) of subdivision (a) of Section 6401.7 shall be among
the management representatives.
(2) If there is a collective bargaining agreement, the employee
representatives shall be selected according to internal union
procedures, and the union shall direct their activities. If there
are multiple unions at the same workplace, each union shall be
entitled to at least one representative, unless the unions decide
among themselves to allocate representation in another manner. If
there are union and nonunion workers at the same workplace, the union
representative may serve as representative for all the employees.
(3) If there is no collective bargaining agreement, all of the
following shall apply:
(A) The employee representatives shall be nonsupervisory employees
selected randomly from among volunteers, or chosen by secret ballot
in an election supervised by the State Mediation and Conciliation
Service according to its procedures.
(B) If possible, at least one-half of the employee members of the
committee or liaison shall have been employed at least 24 months with
the present employer.
(C) The terms of employee representatives shall be three years,
without term limits, and staggered or alternated so as to maintain
some continuity on the committee.
(D) The division, in consultation with the State Mediation and
Conciliation Service and other affected parties, shall adopt
regulations specifying the procedures for selecting representatives
for joint employer-employee occupational safety and health committees
or safety liaison teams if there is no collective bargaining
agreement between the employer and any union representing the
employees.
(i) All committee or liaison members shall be trained regarding
the basics of occupational safety and health and effective adult
learning methods, as follows:
(1) Each member shall initially receive a minimum of 32 hours of
health and safety training to help them become effective liaison or
committee members. The content of this training shall include all of
the following:
(A) Hazard identification and control.
(B) Incident investigation techniques.
(C) Principles of effective worker training and education.
(D) Mechanics of committee operations, including committee rights
and duties.
(E) Workers' rights with respect to occupational safety and
health.
(F) An overview of this standard and other relevant standards.
(2) Each member shall receive a minimum of eight hours of
refresher health and safety training every three years.
(3) Training shall be provided by the Worker Occupational Safety
and Health Training and Education Program (WOSHTEP), the division, a
union, or an approved trainer. The division shall approve all
training providers and curriculum and may further define training
requirements. The training shall be provided at employer expense,
without loss of pay or other benefits, and during work hours.
Refresher training shall be tailored to meet the needs of specific
industries, occupations, or hazards, and shall include new laws and
regulations. Upon satisfactory completion of any training program,
each member shall receive a certificate of completion indicating the
date and type of program.
(j) Each member shall be compensated with his or her regular wages
and benefits while attending any safety and health committee
meeting, doing related safety and health committee work, or receiving
safety and health training.
(k) No committee or liaison member shall be laid off during his or
her tenure or within one year of the end of tenure unless he or she
is the last person in his or her class or category on the job, except
as otherwise provided by a collective bargaining agreement.
(l) Upon application, the division may approve any safety
committee that is innovative or different in form or function, if the
committee meets the intent of this section and the regulations
promulgated by the division.
(m) The employee committee members or liaison shall act in an
advisory capacity to the employer, and individual employee
participants do not assume the employer's exclusive responsibility
for providing a safe and healthful workplace or any related
liability. No employee or employee organization shall be held liable
for any act or omission in connection with the activities of a
committee or liaison.
SEC. 5. Section 6401.9 is added to the Labor Code, to read:
6401.9. (a) On or before January 1, 2006, the Department of
Industrial Relations or one or more of its divisions shall establish
criteria for a certificate of merit based on whether an employer has
an effective injury and illness prevention program (IIPP), including
an effective joint employer-employee occupational safety and health
committee or safety liaison.
(b) An eligible employer may apply for a certificate of merit that
shall entitle the employer to a 5-percent
discount from the insurance carrier or group self-insurance fund
beyond any experience modification rate or other discount standard to
the workers' compensation insurance industry. The amount of
the discount to which the employer is entitled, which shall not
exceed 5 percent, is dependent upon an evaluation by the Department
of Industrial Relations, or one or more of its divisions, of the
injury and illness prevention program that includes an
employer-employee occupational safety and health committee or safety
liaison team. An eligible employer may also use the
certificate of merit to establish a presumption that it has an
effective safety program as may be required from a responsible bidder
pursuant to Sections 1200 and 1201 of the Public Contract Code.
(c) The criteria for the certificate of merit shall include, at a
minimum, all of the following:
(1) The employer has in place an effective IIPP and an effective
joint employer-employee occupational safety and health committee or
liason team If an employer is not required to have a committee or
liaison, he or she may voluntarily implement a committee or liaison
in order to take advantage of the incentives described in subdivision
(b).
(2) The employer shall not be eligible to apply for a certificate
of merit until the committee or liaison has been operating
effectively for at least six months.
(3) The criteria for the certificate of merit shall conform with
criteria developed by the Division of Occupational Safety and Health
for an effective IIPP and joint employer-employee occupational safety
and health committee or liaison team.
(4) At a minimum, the criteria will take into account the size of
the employer, whether or not the employer is a high or low hazard
industry, the lost-workday case incident rate, and the employer's
experience modification rate, if any.
(d) The employer shall submit an application, under penalty of
perjury, for an initial certificate or biannual renewal certificate
to the Department of Industrial Relations according to procedures
developed by the department.
SEC. 6. Section 1103 of the Public Contract Code is amended to
read:
1103. "Responsible bidder," as used in this part, means a bidder
who has demonstrated the attribute of trustworthiness, as well as
quality, fitness, capacity, and experience to satisfactorily perform
the public works contract, in compliance with Chapter 1.5 (commencing
with Section 1200).
SEC. 7. Chapter 1.5 (commencing with Section 1200) is added to
Part 1 of Division 2 of the Public Contract Code, to read:
CHAPTER 1.5 BIDDER INJURY AND ILLNESS PREVENTION PROGRAM
1200. A public entity subject to this code shall require bidders
to be responsible with respect to worker occupational safety and
health. To that end, the bidder, or its component parts if the
bidder is a joint venture, shall be required to submit information as
set forth in subdivision (a) of Section 1201 regarding the
effectiveness of its injury and illness prevention program (IIPP) for
a period of at least four years, or for whatever period less than
four years the bidder has been in business, prior to the date of bid,
in a form specified by the public entity. A certificate of merit
issued pursuant to Section 6401.9 of the Labor Code shall demonstrate
presumptively that the employer has an effective IIPP and may be
submitted in lieu of the information required by subdivision (a) of
Section 1201. The certificate of merit shall also satisfy any
requirements for prequalification that the entity may establish.
1201. (a) A public entity subject to this code shall require that
each prospective bidder for a contract that does not have a
certificate of merit issued pursuant to Section 6401.9 of the Labor
Code, submit the following information in order for the entity to
evaluate the effectiveness of the bidder's injury and illness
prevention program:
(1) A copy of the prospective bidder's written injury and illness
prevention program.
(2) The bidder's history of occupational safety and health. The
history shall include, but not be limited to, at least a four-year
review prior to the date of the bid, or for whatever period less than
four years the bidder has been in business, of both of the
following:
(A) The bidder's history of worker injuries and illnesses as
reflected by workers' compensation costs, lost work days, injury
litigation, doctor's first reports, employer's first reports, and Log
300 forms.
(B) The bidder's history of safety and health violations as
established by citations, special orders, and orders to take special
action, as well as any information memorandum issued by the Division
of Occupational Safety and Health, federal Occupational Safety and
Health Administration, or other occupational safety and health
agencies in other states or federal jurisdictions.
(b) Information submitted pursuant to subdivision (a) shall be a
public record except with respect to any individual's personal
identifiers.
(c) For purposes of this section, "bidder" includes all entities
holding active licenses required by the bid, if any, including the
component licenses for any joint ventures, and including other
entities that may be considered to be substantially the same business
by virtue of overlapping corporate or other business structure.
(d) A public entity may establish a process for prequalifying
prospective bidders for purposes of this section. Any
prequalification pursuant to this process shall be valid for one
calendar year following the date of the initial prequalification. As
part of any prequalification process established pursuant to this
subdivision, the entity also shall establish an appeal process
whereby prospective bidders may appeal the failure to prequalify and
the public may appeal the granting of prequalification to a
prospective bidder.
1202. (a) A public entity subject to this code shall include a
provision in the contract of each successful bidder to provide a safe
and healthful workplace.
(b) The Department of Industrial Relations, in collaboration with
affected state and local agencies and interested parties, shall
develop model guidelines for contractual language for public entities
to assure that the successful bidder provides a safe and healthful
workplace.
SEC. 8. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.